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SK-Social Rites of Marriage -AALS-June15.2015 DRAFT – PLEASE DO NOT CIRCULATE 1 OR CITE WITHOUT PERMISSION 1 SOCIAL RITES OF MARRIAGE Suzanne A. Kim∗ and Katherine A. Thurman∗∗ The legal consequences for same-sex couples who have married in the United States are numerous and profound. As legal rhetoric and scholarly research on marriage suggest, the social dimension of marriage—apart from the concrete legal benefits marriage affords—is significant. Despite what we understand about law’s impact on people’s lives and people’s influence on legal institutions, scholars know little about the ways in which same-sex couples socially experience legal marriage, since it has become a reality in a majority of U.S. states. This paper, the first in an ongoing, mixed-methods research project that examines the intersection of law and the social domain in the context of same-sex marriage, begins to fill a critical gap in socio- legal literatures on marriage and formal recognition of same-sex relationships. We discuss here early themes emerging in our exploratory research that is part of a larger project entitled Marriage Equalities: Gender and Social Norms in Same-Sex and Different-Sex Marriage. We focus in this paper on negotiations surrounding discursive practices associated with marriage—for the latter, taking up two language-based domains in marriage. These domains are decision- making concerning surnames and terminology used to refer to one’s marital partner. Modes of self-presentation provide a window into the interplay of legal status, social norms, concepts of tradition, and gender, and reveal a richly diverse picture of transition to formal legal recognition in the context of longstanding—and continued— 1 From MARRIAGE EQUALITIES: GENDER AND SOCIAL NORMS IN SAME-SEX AND DIFFERENT-SEX MARRIAGE. ∗ Professor of Law and Judge Denny Chin Scholar, School of Law-Newark, Rutgers University. We thank the following for helpful feedback and conversations about this project: Susan Appleton, Lee Badgett, Carlos Ball, Gaia Bernstein, Mary Bernstein, Naomi Cahn, Angela Campbell, Donna Dennis, Nancy Dowd, Max Eichner, Bryant Garth, Suzanne Goldberg, Julie Goldscheid, Joanna Grossman, Clare Huntington, Ummni Khan, Holning Lau, Solangel Maldonado, Maya Manian, Nancy Naples, Marc Poirier, Elizabeth Scott, Carole Silver, Judith Stacey, Arlene Stein, Joyce Sterling, and Deborah Widiss. We also thank the Columbia Law School Center for Gender and Sexuality Law, the Rutgers School of Law-Newark Shuchman Fund for Empirical Research, the Office of the Chancellor of Rutgers University-Newark, and the Office of the Dean of the Rutgers University School of Law-Newark. Last, but not least, profuse thanks to Caitlin Dettmer, Elizabeth Ehret, Scott Le, Kristen Marinaccio, Caitlin Miller, Esther Pak, and Peter Urmston for superb research assistance. ∗∗ Instructor and Doctoral Candidate, Department of Sociology, Rutgers University. v.6.15.15 DRAFT – PLEASE DO NOT CIRCULATE 2 OR CITE WITHOUT PERMISSION marginalization and discrimination. We situate our early findings in relation to fundamental questions we explore about relationships between marriage, hierarchy, and gender, as well as about intersections of legal and social recognition. INTRODUCTION At the time of writing, 37 states plus the District of Columbia offer marriage rights to same-sex couples,2 and by the time this article is published the number will have grown, perhaps even to cover all states in the U.S.3 The legal, economic, and social consequences for the estimated 252,0004 same-sex couples who have married in the United States are profound.5 As marriage becomes available to a rapidly increasing number of same-sex couples, scholars are currently exploring the implications of this change in the law.6 2 Summary of Laws Regarding Recognition of Relationships of Same-Sex Couples, NAT’L CTR. FOR LESBIAN RTS. (Feb. 24, 2015), http://www.nclrights.org/wp- content/uploads/2013/07/Relationship_Recognition_State_Laws_Summary.pdf. 3 The U.S. Supreme Court granted certiorari on January 16, 2015 on the four cases from the Sixth Circuit in which courts upheld marriage bans. Obergefell v. Hodges, 772 F.3d 388 (6th Cir. 2014), cert. granted, 83 U.S.L.W. 3607 (U.S. Jan. 16, 2015) (No. 14-556); Tanco et al. v. Haslam, 772 F.3d 388 (6th Cir. 2014), cert. granted, 83 U.S.L.W. 3608 (U.S. Jan. 16, 2015) (No. 14-562); DeBoer et al. v. Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted, 83 U.S.L.W. 3608 (U.S. Jan. 16, 2015) (No. 14-571); Bourke v. Beshear, 772 F.3d 388 (6th Cir. 2014), cert. granted, 83 U.S.L.W. 3608 (U.S. Jan. 16, 2015) (No. 14-574). 4 As of the most recent date for which the Census Bureau has collected data, there are about 252,000 married same-sex couples in the U.S. Table 2: Household Characteristics of Same-sex Couple Households by Relationship Type: ACS 2013, U.S. CENSUS BUREAU, http://census.gov/hhes/samesex/data/acs.html (follow “2013” hyperlink) (last visited April 8, 2015); Hunter Schwarz, Married same-sex couples make up less than one half of one percent of all married couples in the U.S., WASH. POST, (Sept. 22, 2014), http://www.washingtonpost.com/blogs/govbeat/wp/2014/09/22/married-same-sex- couples-make-up-less-than-one-half-of-one-percent-of-all-married-couples-in-the- u-s/. 5 See United States v. Windsor, 133 S. Ct. 2675 (2013); United States of America v. Windsor, 2013 WL 275686 (U.S.) (U.S.,2013) (Married individuals have "financial benefits that promote enhanced economic and financial security compared to unmarried individuals. deriving from tax laws, employee benefits, death benefits, and entitlement programs. In addition, married couples enjoy special rights and privileges that buffer them against the psychological stress associated with traumatic life events. .”). Id. at 271-72. See also Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 961-62 (N.D. Cal. 2010) (“Under federal law alone, there are 1,138 statutory provisions that consider marital status in determining the award of various benefits, rights, and privileges.”); M.V. Lee Badgett, Social Inclusion and the Value of Marriage Equality in Massachusetts and the Netherlands, 67 J. OF SOC. ISSUES, 316, 317 (listing legal and economic for benefits for couples who marry, including economic gains through insurance). 6 See, e.g., Susan Frelich Appleton, Leaving Home? Domicile, Family and Gender, 47 U.C. DAVIS L. REV. 1455 (2014) (considering the effect of same-sex marriage on v.6.15.15 DRAFT – PLEASE DO NOT CIRCULATE 3 OR CITE WITHOUT PERMISSION Legal discourse in support of marriage rights for same-sex couples has focused on legal and social harms from unequal access to marriage, and conversely, and understandably, legal and social benefit from access to marriage. The host of legal benefits that same-sex couples gain from marriage are numerous and concrete.7 Moreover, legal rhetoric has identified a number of social benefits gained from the recognition that marriage affords to couples.8 To the extent that the impact of law is felt in daily life and law’s subjects also shape legal institutions and norms, we know very little about the ways same-sex couples socially experience legal marriage since it has become a reality in all but 13 states. Research on the day-to-day of marriage in the United States has focused almost exclusively on different-sex couples,9 and research conceptions of domicile); Mary Patricia Byrn & Morgan L. Holcomb, Wedlocked, 67 U. MIAMI L. REV. 1 (2012) (discussing how for different-sex couples, legally ending their marriage is possible as a matter of right, but for married same-sex couples state DOMAs (Defense of Marriage Acts) present a stumbling block, preventing access to divorce in some states); Courtney Joslin, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, 91 B.U. L. REV. 1669 (2011) (offering arguments against the domicile-based jurisdictional rule for divorce, which prevents access to divorce for many same-sex spouses because they cannot divorce in their home states if their state law precludes recognition of same- sex marriages or out of state because the anomalous jurisdictional rule); Allison Anna Tait, Reinventing Marital Partnership (draft on file with author) (considering marital property in the context of same-sex marriage). 7 See Windsor, 133 S. Ct. 2675; United States of America v. Windsor, 2013 WL 275686 (U.S.) (2013) (Married individuals have “financial benefits that promote enhanced economic and financial security compared to unmarried individuals. deriving from tax laws, employee benefits, death benefits, and entitlement programs. In addition, married couples enjoy special rights and privileges that buffer them against the psychological stress associated with traumatic life events. .”). Id. at 271-72. 8 See Goodridge v. Department of Public Health, 798 N.E.2d 941, 968 (Mass. 2003) (“The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits.”). Id at 948. See also In re Opinion of the Justices to the Senate 802 N.E.2d 565, 571–72 (Mass. 2004) (“[m]arriage also bestows enormous private and social advantages on those who choose to marry ... [and] is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.” (citing Goodridge, 798 N.E.2d at 941)). 9 See SUZANNE BIANCHI,
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